United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


JUDGE PETER CLARK:

1. In April 1997 the appellant, Mr Jones, suffered a mental breakdown and was admitted to the psychiatric unit of a general hospital. He spent four weeks as an in-patient. On 7th November 1997 he was dismissed from his position as network analyst with his then employer. In summer 1998 he suffered a relapse which required further admission to hospital. He has since made steady progress with the help of his doctors, but at all relevant times he continued to suffer from severe clinical depression such that he was disabled within the meaning of s.1 of the Disability Discrimination Act 1995 ['DDA'].
2. In late 1998 he responded to successive advertisements placed by the first respondent recruitment agency (Computer People) for posts within their client, the second respondent, Astra Zeneca. On each occasion his application was rejected without his being called to interview. Those three posts, in chronological order, were:

(1) Systems Administrator (ref. CCM0020)

(2) Network Support Analyst (CCM0017)

(3) IT Procurement Administrator (CCM0050)

3. Following rejection for interview in respect of all three posts he presented a complaint of unlawful disability discrimination to the Birmingham Employment Tribunal on 6th March 1999. The claim was resisted by both respondents and came on for hearing before a tribunal chaired by Mr D W Crump over some nine days between 15th November 1999 and 14th March 2000.
4. By a detailed reserved decision with extended reasons promulgated on 15th June 2000 the tribunal upheld his complaint against the respondents of unlawful discrimination contrary to ss. 5(1)(a) and 5(1) and 4(1)(a) DDA in respect of the Network Support Analyst post, but rejected his complaint in respect of the other two posts.
5. The Notice of Appeal focuses on the following further findings by the tribunal:

(1) that he did not have a 'free-standing' right of complaint against the respondents in respect of their alleged failure to have any proper or adequately documented policy to prevent discrimination against disabled persons (reasons, paragraphs 97-99).

(2) that their failure to communicate to their employees involved in recruitment the requirements of DDA and the Code of Practice issued thereunder did not give rise to unlawful discrimination against the appellant (reasons, paragraph 98).

(3) that any failure by Astra to ensure that Computer People as their agents were adequately informed and trained as to the requirements of the legislation did not of itself amount to unlawful discrimination (reasons, paragraph 100) and

(4) that Computer People's failure to provide the appellant with a person specification or job description did not amount to unlawful discrimination under DDA. It was not for a reason which related to his disability. That was Computer People's usual means of carrying on business. No candidate, regardless of disability, was supplied with those documents (reasons, paragraphs 101-103). Further the tribunal found that the failure to provide those documents to the appellant did not amount to a breach of the duty to make reasonable adjustments under s.6 DDA (reasons, paragraph 104).

6. With our permission this morning Mr Jones added a fifth ground of appeal, that is a perversity argument based on the tribunal's finding on the Network Support Analyst post, which in turn involved rejecting the explanation given by the witness, Mr Bowe, an employee of Computer People, and whether no reasonable tribunal could in those circumstances conclude other than that such a finding as to Mr Bowe's credibility, coupled with their findings as to his use of selection criteria for carrying out his sift of candidates at paragraph 59 of their reasons render the remaining complaints well founded.
7. It is convenient to deal with the grounds of appeals in three stages:

(1) Grounds (1)-(3)

Mr Jones accepts that the only two routes to a finding of unlawful disability discrimination lies through either s.5(1), less favourable treatment or s.5(2), failure to make a s. 6 adjustment, coupled with s.4. He concedes, correctly in our view, that a failure by an employer to observe any provision of the Code of Practice issued under s.53(1)(a) DDA does not of itself give rise to liability under the Act. By s.53(6) any provision of the Code which appears to a tribunal to be relevant to any question arising in any proceedings under the Act shall be taken into account in determining that question.

In these circumstances we are unable to accept his submission that the tribunal fell into error in concluding that any failure on the part of the respondents to comply with the provisions of the Code, and in particular paragraph 4.56 gives rise to a free-standing right of complaint under the Act.

Further, we are not persuaded that his challenge to the tribunal's decision on any of these three grounds is made good by reference to the respondents' duty under s.6.

Accordingly, we reject these grounds of appeal.

(2) Ground 4

At paragraph 104 the tribunal considered and rejected the appellant's contention that the respondents and in particular Computer People's failure to provide him with the person specification or job description for the posts applied for, in common with their general practice, amounted to a failure to make reasonable adjustments contrary to s.6. We can see no grounds on appeal for interfering with that finding.

(3) The new ground 5 – perversity

We have earlier outlined the nature of this submission. It is quite wrong to believe that because a tribunal rejects a witness's evidence in part that they must then go on to reject it in whole. At paragraph 89 of their reasons the tribunal stood back, having found against Mr Bowe's explanation proffered for not interviewing the appellant for the Network Support Analyst post, to consider whether that conclusion led them to reach the same determination in respect of the other two posts. They decided that it did not.

We bear in mind that the tribunal heard this case over nine days. They were best placed to decide what inferences to draw or not to draw from the evidence before them, indeed, Parliament has entrusted them with that responsibility. For ourselves we can see no basis in law for holding that their overall conclusion was perverse in any of the senses identified by Mummery J in Stewart v Cleveland Guest Engineering Ltd [1994] IRLR 440, 443.

8. It follows, in our judgment, that this appeal discloses no arguable point or points of law to go forward to a full appeal hearing, consequently; it must be dismissed.